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Supreme Court Steps Into 2024 Election & Culture Wars · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: The Supreme Court stepped into the twenty twenty four election,
0:14
Speaker 2: allowing Virginia to carry out a purge of residence from
0:17
Speaker 2: its voter rolls. The court's conservative justices granted an emergency
0:22
Speaker 2: appeal from Virginia's Republican governor despite the fact that a
0:26
Speaker 2: federal court had found that the state had illegally purged
0:30
Speaker 2: more than sixteen hundred voter registrations in the past two months,
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Speaker 2: violating a ninety day pre election quiet period under federal law.
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Speaker 2: The three liberal justices dissented. Virginia Governor Glenn Youngkin has
0:45
Speaker 2: defended his order issued on August seventh, the ninetieth day
0:49
Speaker 2: before the November fifth election. Here he is on CNN.
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Speaker 3: Because it is done on an individualized basis, person by person,
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Speaker 3: and because that person has in fact self identified as
1:02
Speaker 3: a non citizen, this is not subject to the ninety
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Speaker 3: day blackout period. In my view and in Councils and
1:09
Speaker 3: Council's advice.
1:11
Speaker 2: Joining me is election law expert Richard Brefalt, a professor
1:14
Speaker 2: at Columbia Law School. Were you surprised that the Supreme
1:18
Speaker 2: Court intervened to reverse the Fourth Circuit and the District
1:22
Speaker 2: court judge, Yes.
1:24
Speaker 4: Maybe I shouldn't have been, but yes I was. So
1:27
Speaker 4: this case involves a state effort to purge people from
1:30
Speaker 4: the roles on the claim that they're non citizens. Non
1:33
Speaker 4: citizens are not entitled to vote. It's illegal, and states
1:36
Speaker 4: are allowed to remove any non citizens that are on
1:38
Speaker 4: the ballot. But there is a provision in federal law
1:41
Speaker 4: National Voter Registration Act, that prohibits mass purchase so called
1:45
Speaker 4: systematic purchase within ninety days before the election, because it
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Speaker 4: makes it too difficult for people. They'd be purged by mistake,
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Speaker 4: and if it's a mass purge, it's actually difficult for
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Speaker 4: people to be aware of that and to respond, And
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Speaker 4: so that is illegal. But Virginia consciously adopted such a program.
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Speaker 4: The governor you should an EXECUS awards to that effect,
2:01
Speaker 4: literally on the day that this so called quiet or
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Speaker 4: non purgury was supposed to begin, and basically used some
2:07
Speaker 4: mix of DMV data and other databases to conclude that
2:11
Speaker 4: people were not citizens DMV. When you get a driver's license,
2:15
Speaker 4: you may be asked whether or not you were citizens.
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Speaker 4: Some people checked non citizen by mistake, some people check
2:19
Speaker 4: not a cisms because they are not a citizen when
2:21
Speaker 4: they get their driver's license, but some years later become
2:24
Speaker 4: naturalized as citizens. So the state, using that data and
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Speaker 4: other data, went ahead and concluded that something like sixteen
2:31
Speaker 4: hundred people were not citizens and needed to be purged
2:34
Speaker 4: from the roles, and that was challenged on the theory
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Speaker 4: that violated the federal law. And also there was evidence
2:39
Speaker 4: a number of these people who were bridge were in
2:41
Speaker 4: fact citizens and were challenging that as in individuals. The
2:44
Speaker 4: Federal District Court in Virginia concluded that this was a
2:46
Speaker 4: pretty straightforward violation the federal law, that it was going
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Speaker 4: on in this so called quiet theory, that it was
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Speaker 4: a systematic removal effort, not based on individualized information about
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Speaker 4: individual voters, but basically a massive database information that they
2:59
Speaker 4: were loading from one database to another. And the Fourth
3:02
Speaker 4: Circuit Court of Appeals agreed rather refuse to overturn the
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Speaker 4: District Court's injunction, the Court of Appeals basically said, yes,
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Speaker 4: on the fact that it appears to us that this
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Speaker 4: is a violation of federal law and it should be stopped.
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Speaker 4: The Supreme Court rather quickly by well, I'm coming to
3:16
Speaker 4: to say six y three. But you know that three
3:18
Speaker 4: liberal justices dissented because it was just an order. It's
3:21
Speaker 4: not clear that all six of the others agreed, but
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Speaker 4: but it looks like by pretty much a party line
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Speaker 4: vote without an opinion, basically reversed the Fourth Circuit and
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Speaker 4: allowed this purge to go forth. But the purchase actually stopped.
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Speaker 4: But the sixteen hundred voters who were removed remain removed
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Speaker 4: unless they can as individuals go in and Virginia allows
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Speaker 4: the same day registration, go in and prove that they
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Speaker 4: are citizens and re register and then vote.
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Speaker 2: Virginia made several arguments, and one was that the quiet
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Speaker 2: period doesn't apply to non citizens. Another was that courts
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Speaker 2: shouldn't get involved because of what's known as the personel.
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Speaker 4: Right, so taking them in reverse order. The problem with
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Speaker 4: the Percell principle in this case is courts cannot get involved.
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Speaker 4: I mean, the only basis for judicial intervention is that
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Speaker 4: the state has violated the ninety day rule, So any
4:14
Speaker 4: effort to enforce the ninety day rule would occur within
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Speaker 4: ninety days before the election. So it makes no sense
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Speaker 4: to invoke the Percel principle here. The only real question
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Speaker 4: is did the plaintiffs and the US government, which also participated,
4:27
Speaker 4: move quickly once they became aware of what was going on,
4:30
Speaker 4: and the lower courts agreed that they did that there
4:31
Speaker 4: was no delay, and once it became clear what the
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Speaker 4: state was doing, the lawsuit was brought In terms of
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Speaker 4: whether or not the quiet period applies to removal the
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Speaker 4: non citizens, nothing in it any case that it doesn't.
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Speaker 4: In other words, the law is simply there to say
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Speaker 4: that there should be no removals based on a system,
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Speaker 4: and no systematic removals. And it doesn't say no removals
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Speaker 4: only for non residency or no removals. It just as
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Speaker 4: no removals that period. There's nothing in the law that
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Speaker 4: limits the grounds of ineligibility to something or other, such
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Speaker 4: as to moving, and it does permit removals for death.
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Speaker 4: So it's not quite clear what this law would be
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Speaker 4: doing if it doesn't also apply to removals on a
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Speaker 4: theory that the individual is not a citizen.
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Speaker 2: So, as you mentioned, we don't know why the justices
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Speaker 2: voted as they did, but the three liberal justices made
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Speaker 2: their public dissent clear. What does it tell you that
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Speaker 2: this was down ideological lines?
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Speaker 4: It's very troubling. It's very troubling the decision. It seems
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Speaker 4: to be the lower court decision was well reasoned. The
5:37
Speaker 4: Court of Appeals agreed with it, and there is irreparable
5:40
Speaker 4: injury to those voters who might be eligible to vote,
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Speaker 4: who have been denied the right to vote. Now, some
5:45
Speaker 4: of them will be able to re establish their eligibility
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Speaker 4: because they can re register in the coming day. So
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Speaker 4: it's possible some of them will be back in, but
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Speaker 4: you know, it takes time, it takes efforts. Quite possible
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Speaker 4: some of them will not.
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Speaker 2: Although Virginia is not a battleground state. This was based
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Speaker 2: on an order by the Republican governor and was backed
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Speaker 2: at the Supreme Court by the country's twenty six other
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Speaker 2: Republican state attorneys general, the Republican National Committee, and several
6:13
Speaker 2: conservative groups. And it revolves around a flashpoint in Donald
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Speaker 2: Trump's yes race, which is that you know, there's widespread
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Speaker 2: voting by non citizens.
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Speaker 4: Right, And for years he's been making that argument, even
6:28
Speaker 4: when he won in twenty sixteen, although he lost the
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Speaker 4: popular vote, he says, well, I really won the popular
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Speaker 4: vote because Hillary Clinton's numbers were inflated by all the
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Speaker 4: non citizens there is absolutely no evidence of more than
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Speaker 4: a minuscule number of non citizens voting, and usually is
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Speaker 4: by mistake. It's illegal for non citizens to vote. There
6:46
Speaker 4: are severe penalties. The number of non citizens who are
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Speaker 4: registered vote who actually vote is absolutely minuscular. It is
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Speaker 4: a non fact, but it's been used so heavily by
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Speaker 4: Republicans to try and undermine legitimacy of the election. There
7:01
Speaker 4: was just no evidence that it occurs.
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Speaker 2: So do you think this lawsuit is to set the
7:07
Speaker 2: stage or the groundwork for contesting election results.
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Speaker 4: Yes, I think anything that raises the issue of non citizens.
7:15
Speaker 1: Now.
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Speaker 4: Of course Republicans won this lawsuit, so they won't be
7:18
Speaker 4: able to make this argument in Virginia now, but you know,
7:21
Speaker 4: it is an issue they've been raising all over the country.
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Speaker 4: There was a similar student Alabama where the Federal District
7:27
Speaker 4: Court ordered the governor to stop the per program in
7:30
Speaker 4: Alabama and to undo it there. I think about three
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Speaker 4: thousand people have been removed from the roles, and there
7:35
Speaker 4: was evidence again that it's often by a mistake. Again,
7:37
Speaker 4: they're using old databases. Sometimes it's the wrong person. There
7:41
Speaker 4: may be that the DMV numbers may indicate this person
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Speaker 4: with a certain name as a non citizen. Somebody with
7:46
Speaker 4: the same name but a different person might be removed
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Speaker 4: from the roles because if their matching is pretty basic. Basically,
7:53
Speaker 4: if you have the same first and last name as
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Speaker 4: the person at least been identified as a non citizen,
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Speaker 4: you can be removed. And that's not so uncommon. And
7:59
Speaker 4: it also again using DMV data, since your driver's license
8:03
Speaker 4: can be good for four years or more. In that time,
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Speaker 4: you could have naturalized from being a non citizen to
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Speaker 4: a citizen, but that naturalized person will be removed from
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Speaker 4: the roles. And so I think it's very much a
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Speaker 4: way of keeping the issue alive and in front of
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Speaker 4: people all the time. And indeed people will think, oh,
8:19
Speaker 4: there were sixteen hundred non citizens voting in Virginia. It's
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Speaker 4: not clear that any of them were non citizens. Certain
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Speaker 4: number of names popped up on certain databases, and certainly
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Speaker 4: there are men individual cases in the newspapers and people
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Speaker 4: showing that they were not non citizens, that they were citizens,
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Speaker 4: some citizens from birth and some naturalized citizens.
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Speaker 2: A lot of election experts have been saying that this
8:40
Speaker 2: year's election won't be a repeat of Bushvie Gore. The
8:44
Speaker 2: Supreme Court is unlikely to play a pivotal role. But
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Speaker 2: does this decision indicate differently that the Justices may get involved.
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Speaker 4: Yes, I don't know why you would think that the
8:55
Speaker 4: Justices will be uninvolved. It will turn on what the
8:57
Speaker 4: issues are. And you know, I think versus Score was
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Speaker 4: unusual and that the issue the Supreme Court dealt with
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Speaker 4: was infect a post election issue another word, how to
9:07
Speaker 4: take care of a recount or how to take care
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Speaker 4: of the counting of ballots in Florida where it wasn't
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Speaker 4: completely clear how people had voted, and so that was
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Speaker 4: an issue that could not have come up before the
9:18
Speaker 4: election this time. I mean, I think it's still another
9:21
Speaker 4: week to go. They're deciding issues that could be relevant
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Speaker 4: to the election beforehand, like this one. As for things
9:27
Speaker 4: after the election, there may still be things that come up,
9:30
Speaker 4: so it's hard to know. In some ways, you could
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Speaker 4: argue that this is in earlier this year on Trump's
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Speaker 4: immunity in some sense plays into the election or getting
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Speaker 4: on the ballot in the first place. So I don't
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Speaker 4: understand the argument as to why anyone thinks that they
9:42
Speaker 4: would be more or less engaged than in twenty or
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Speaker 4: in twenty twenty, where they did a bunch of things
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Speaker 4: before the election, but not so much after the election. Right.
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Speaker 2: Well, they point to that, They say, all those you know,
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Speaker 2: more than sixty cases brought by Trump and his allies,
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Speaker 2: and they didn't take up any of them, right.
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Speaker 4: Right, And including the original jurisdiction case that Texas brought
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Speaker 4: against Pennsylvania to not count Pennsylvania's vote Texas joined by
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Speaker 4: twenty other Republican states. They didn't hear that. No, they
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Speaker 4: stayed pretty much out of it after the election in
10:12
Speaker 4: twenty twenty. But you know, the result in twenty twenty
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Speaker 4: was pretty clear. I think it's hard to speculate about
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Speaker 4: the Supreme Court, but this decision is not a great
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Speaker 4: sign about the courts wanting to stay out of the election.
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Speaker 4: This was an unnecessary decision. The law was pretty strongly
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Speaker 4: on the side of the plaintiffs, the ones trying to
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Speaker 4: stop the purge.
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Speaker 2: They did refuse to order RFK Junior's name removed from
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Speaker 2: presidential election ballots in Michigan and Wisconsin.
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Speaker 4: Yeah, I mean, again, it's hard to figure out. I mean,
10:42
Speaker 4: it could be that maybe they want to be deferring
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Speaker 4: to the states both ways. I mean, refusing to order
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Speaker 4: the removal is consistent with the state, and in this case,
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Speaker 4: allowing the states to go forward with the purges consistent
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Speaker 4: with the state. Maybe that's part of it, but I
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Speaker 4: don't even know. I'm not even trying to tempt to
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Speaker 4: say that there's a consistent logic.
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Speaker 2: It's hard to say it. Maybe we'll underst stand more
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Speaker 2: when the court rules in a case in the pivotal
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Speaker 2: state of Pennsylvania where the Republican Party is trying to
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Speaker 2: get the justices to stop Pennsylvanians from getting a second
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Speaker 2: chance to vote if their mail in ballots are rejected
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Speaker 2: as incomplete. Thanks so much, rich That's Professor Richard Brifault
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Speaker 2: of Columbia Law School. Coming up next on the Bloomberg
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Speaker 2: Law Show. A Texas judge's unusual request injects culture war
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Speaker 2: issues into the Boeing plea deal. I'm June Grosso and
11:32
Speaker 2: you're listening to Bloomberg. The US government's criminal case against
11:37
Speaker 2: Boeing over two fatal crashes took what many legal observers
11:42
Speaker 2: called an unusual turn when a conservative Texas federal judge
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Speaker 2: brought the culture wars into it, questioning how diversity practices
11:51
Speaker 2: would affect the selection of an independent safety monitor. Judge
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Speaker 2: rit O'Connor, a George W. Bush appointee, is considering Boeing's
12:00
Speaker 2: opposed plea deal with the Justice Department, which would allow
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Speaker 2: the company to avoid a criminal trial over the two
12:07
Speaker 2: catastrophic crashes of its seven thirty seven Max jets. At
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Speaker 2: a recent hearing, the judge press the Justice Department on
12:15
Speaker 2: why diversity, equity and inclusion criteria in the selection of
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Speaker 2: a monitor had been built into the plea agreement. Joining
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Speaker 2: me is Todd Howe, an associate professor of business law
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Speaker 2: and ethics at Indiana University. First tell us where the
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Speaker 2: independent monitor fits into the plea deal.
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Speaker 1: So, the Department of Justice is part of the proposed
12:37
Speaker 1: plea agreement in the Boeing case, has a provision in
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Speaker 1: that agreement that says Gooing will be under a corporate
12:45
Speaker 1: monitor for the next number of years, and a corporate
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Speaker 1: monitor is essentially an outsider that will be involved in
12:55
Speaker 1: day to day decisions that the company is making in
12:58
Speaker 1: order to ensure that they're going to beef up their
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Speaker 1: compliance program and make sure that essentially they're following all
13:06
Speaker 1: the compliance obligations that are laid out in the plea
13:10
Speaker 1: agreement in order to repair essentially the wrongdoing that has
13:14
Speaker 1: occurred that caused the conviction and what made.
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Speaker 2: This judge curious about diversity, equity and inclusion criteria.
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Speaker 1: So to take a step back for a second, So,
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Speaker 1: first of all, it's very rare for judges to have
13:29
Speaker 1: a whole lot to say about corporate monitors because usually
13:33
Speaker 1: the agreements between a company and the Department of Justice
13:38
Speaker 1: where a monitor would be imposed, don't really get in
13:41
Speaker 1: front of judges very often. So this is kind of
13:44
Speaker 1: an atypical situation because there's actually a plea agreement in
13:48
Speaker 1: this case, and so because there's a plea agreement, now
13:51
Speaker 1: the court has the opportunity to either accept or deny
13:56
Speaker 1: that agreement. And so as part of the court's role,
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Speaker 1: the judge was reviewing the proposed plea agreement, which has
14:03
Speaker 1: been particularly contentious because the victims of the two plane
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Speaker 1: crashes have been trying to block a flea agreement for
14:09
Speaker 1: a very long time. They want to go to trial,
14:11
Speaker 1: they want it bowing to be held responsible. So in
14:14
Speaker 1: order to decide whether the plea agreement is going to
14:17
Speaker 1: be granted, the judge was reviewing it, and what happened
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Speaker 1: recently is the judge wanted to get more information related
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Speaker 1: to a diversity and equity provision related to the monitor,
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Speaker 1: which is essentially a Department of Justice provision that says,
14:33
Speaker 1: you know, we're going to make sure we're going to
14:35
Speaker 1: look at diversity and equity issues. We want to keep
14:38
Speaker 1: those in mind when we're selecting monitors, and that really
14:41
Speaker 1: caught the attention of the court.
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Speaker 2: The Justice Department says, this is really part of a
14:46
Speaker 2: long standing practice at the agency. Quote this new language
14:51
Speaker 2: reflected not a change in policy, but rather a principle
14:54
Speaker 2: that has always governed the process that selection of a
14:57
Speaker 2: monitor must be based solely on merit from the broadest
15:00
Speaker 2: possible pool of qualified candidates.
15:03
Speaker 1: Let me put this a little bit larger context. So,
15:06
Speaker 1: this diverse inectuity provision has been in Justice departments. You know,
15:13
Speaker 1: policies has been used related to monitors going back quite
15:18
Speaker 1: a way since about twenty eighteen. Hasn't been used a
15:22
Speaker 1: lot in every single monitorship, but it's been around, and
15:24
Speaker 1: then it was kind of more formalized a little bit later,
15:27
Speaker 1: So there's been a number of years that this provision
15:30
Speaker 1: has been out there. The purpose of it was to
15:33
Speaker 1: try to get a more diverse pool of monitor candidates,
15:38
Speaker 1: because if you look back at the history of monitors,
15:41
Speaker 1: they tend to be lawyers from big law firms and
15:45
Speaker 1: big consulting type firms. Former Department of Justice, you know,
15:49
Speaker 1: officials or prosecutors, they tend to be older, they tend
15:53
Speaker 1: to be male, and they largely were white. And so
15:56
Speaker 1: you know, these kind of DII provisions were sort of
15:58
Speaker 1: just a larger effort by the Department of Justice to
16:01
Speaker 1: diversify the monitor. It doesn't necessarily mean you're going to
16:05
Speaker 1: get less qualified candidates by any stretch, because there's a
16:09
Speaker 1: lot of great qualified candidates. I think the issue here is,
16:14
Speaker 1: you know, we're in this political moment where diversity, equity inclusion,
16:18
Speaker 1: so the pendulum is swung back, and this judge is
16:22
Speaker 1: picking up on that and really focusing closely at it. However,
16:27
Speaker 1: my opinion here is the judge should be focused more
16:30
Speaker 1: on the qualifications of the monitor, not necessarily the DEI provision,
16:35
Speaker 1: but this larger question of what type of skill is
16:39
Speaker 1: this monitor going to have? I think that's where his
16:43
Speaker 1: focus should be.
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Speaker 2: But normally, as you said before, judges don't get involved
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Speaker 2: even in the selection of the monitor.
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Speaker 1: That's correct. So the way that the Department of Justice
16:54
Speaker 1: policy for monitors selection generally goes is the THEOJ and
17:00
Speaker 1: the company sort of the company selects a bunch of
17:04
Speaker 1: different monitors, and then ultimately the Department Justice sort of
17:08
Speaker 1: selects one, and there's some kind of like veto provisions,
17:11
Speaker 1: if you will. This particular monitorship is a little bit different,
17:16
Speaker 1: where the Apartment of Justice has created more of an
17:18
Speaker 1: open call for monitors, so anybody really is going to
17:23
Speaker 1: be able to assuming that the judge proves plea agreement,
17:26
Speaker 1: anybody's going to be able to put their hat in
17:28
Speaker 1: the ring to be a monitor, and then the selection
17:30
Speaker 1: process is a little bit different. But all of that
17:33
Speaker 1: is sort of in some ways kind of gone by
17:35
Speaker 1: the wayside because the judges really focused on this DEI
17:39
Speaker 1: provision in particular.
17:41
Speaker 2: Did you find the Justice Department's explanation convincing.
17:47
Speaker 1: Well, listen, I think that the Department of Justice, I
17:50
Speaker 1: think they're accurate in what they've reported in the sense
17:53
Speaker 1: that this provision has been around for a long time.
17:55
Speaker 1: They give the background about why the provisions created. You know,
17:58
Speaker 1: they're absolutely right to that these provisions have been in
18:01
Speaker 1: effect over the last two administrations, so not just the
18:04
Speaker 1: Biden administration but also the Trump administration. So you know,
18:08
Speaker 1: it's been kind of a fairly long standing practice despite
18:11
Speaker 1: the focus on it now. Again, my focus here, if
18:14
Speaker 1: I were the judge is I would be asking much
18:17
Speaker 1: more specific questions about, well, what exact skills and expertise
18:24
Speaker 1: is the Department of Justice wanting and is Boeing going
18:27
Speaker 1: to agree to essentially in order for there to be
18:31
Speaker 1: an effective compliance program to make sure something like what
18:35
Speaker 1: happened with the Boeing case doesn't ever happen again. And
18:38
Speaker 1: so there's been a lot of problems with skills and
18:40
Speaker 1: expertise of monitors over the years, and that has had
18:44
Speaker 1: nothing to do with diversity equity inclusion, because we've seen
18:48
Speaker 1: those problems before this DEI provision was in place, and
18:51
Speaker 1: we've certainly seen them afterwards. So that's what my focus
18:55
Speaker 1: would be if I were this judgement, and that's what
18:57
Speaker 1: I would count for him to be looking at.
18:59
Speaker 2: Well. Judge O'Connor has been known for some very conservative opinions.
19:05
Speaker 2: He's the judge who found Obamacare was unconstitutional, which the
19:09
Speaker 2: US Supreme Court then reversed him on.
19:12
Speaker 1: Yeah, I mean that's right. I mean, I wasn't familiar
19:15
Speaker 1: with his you know, ideology prior to this, and so
19:19
Speaker 1: you know, I guess the cynic out there to say, well, listen,
19:22
Speaker 1: this is kind of just part of his particular predilections
19:25
Speaker 1: or his ideology sort of entering the culture wars or
19:28
Speaker 1: something like that. Whether that's the case or not, I
19:32
Speaker 1: think what we really need to be focusing on is
19:35
Speaker 1: the purpose of the monitor. The purpose of the monitor
19:39
Speaker 1: is to be involved in the company to help ensure
19:42
Speaker 1: that the prophecies the company puts in place going forward
19:46
Speaker 1: are going to actually solve the problem. And that's really
19:50
Speaker 1: what we need to be focused on if we want
19:52
Speaker 1: to have a real impact on corporate wrongdoing and corporate
19:55
Speaker 1: crime and positive cultures in an organization which going really
19:59
Speaker 1: is differing from the negative effects of and you can
20:02
Speaker 1: see that and the safety records and a whole lot
20:04
Speaker 1: of other things going on at Boeing. So getting a
20:07
Speaker 1: good monitor in there is actually going to make a
20:09
Speaker 1: difference really matters. The demographic makeup of that monitor shouldn't matter.
20:14
Speaker 1: It's really about the skills and expertise. And so that's
20:17
Speaker 1: again where I want on this judge to be focused
20:19
Speaker 1: as opposed to entering the culture wars or making some
20:23
Speaker 1: kind of statement about thee High More broadly, so, the judge.
20:26
Speaker 2: Is going to decide on whether the plea agreement goes forward,
20:31
Speaker 2: and in that he could say, I don't want a
20:33
Speaker 2: monitor that is chosen by using diversity, equity and inclusion criteria.
20:41
Speaker 1: Well, it's kind of interesting. This particular plea agreement comes
20:45
Speaker 1: under a provision it's called a fee plea, which basically
20:48
Speaker 1: says that the parties have agreed on the flea and
20:52
Speaker 1: the court is going to agree to it or not
20:55
Speaker 1: agree to it. It's kind of a take it or
20:57
Speaker 1: leave it situation. And then if the judge did agree
21:00
Speaker 1: with it, the parties sort of have to go back
21:02
Speaker 1: and see if they can figure out something else, or
21:04
Speaker 1: they could decide that you know, they're going to go
21:06
Speaker 1: to trial. So the interesting way that the court has
21:10
Speaker 1: kind of put its foot in the door about this
21:12
Speaker 1: particular plea agreement. You know, my guess is that ultimately
21:16
Speaker 1: it get approved, because that's what happens in the vast,
21:19
Speaker 1: vast majority of these types of cases. But it sure
21:22
Speaker 1: seems that the court's going to put the parties in
21:25
Speaker 1: the department of Justice through the ringer, if you will,
21:27
Speaker 1: on the CI provision and maybe some other provision for
21:30
Speaker 1: that happens.
21:31
Speaker 2: Because the opposition to this by the victims families has been,
21:37
Speaker 2: you know, very loud and persistent.
21:40
Speaker 1: That's exactly right. It's part of the really uncharacteristic nature
21:46
Speaker 1: of this type of case where you have a really
21:50
Speaker 1: vocal victims group that doesn't always happen in white collar,
21:53
Speaker 1: you know, corporate crime cases. Case, and they have an
21:56
Speaker 1: extremely able counsel of talk well out of the University
22:01
Speaker 1: of Utah who has really led to charge. And so
22:05
Speaker 1: not only did they block you know, sort of reopen
22:08
Speaker 1: almost reopen the case, if you will, and has a
22:11
Speaker 1: Department of Justice relook at the existing deferred prosecution agreement
22:15
Speaker 1: and that's sort of what you know, led to Now
22:17
Speaker 1: they're being an actual formal plea and going to be
22:20
Speaker 1: a conviction in this case. So yeah, it's a very
22:23
Speaker 1: unique experience, and I think from their interest rate, they're
22:26
Speaker 1: happy to have anything that's going to disrupt through up
22:28
Speaker 1: the plea agreement because ultimately they want either a more
22:31
Speaker 1: stringent plea agreement that goes against the company or they
22:35
Speaker 1: want to come to go to trial and face the
22:38
Speaker 1: consequences of the trial.
22:39
Speaker 2: So under the plea agreement, what exactly happens to.
22:42
Speaker 1: Boeing, Well, Boeing would pay a massive fine, they have
22:48
Speaker 1: long term compliance obligations. How they have to remake their
22:52
Speaker 1: compliance program in order to guard against this type of fraud.
22:56
Speaker 1: And then kind of included in that there is going
22:59
Speaker 1: to be, you know, a corporate monitor that will oversee
23:02
Speaker 1: those changes within the company for a number of years
23:06
Speaker 1: going forward.
23:07
Speaker 2: Thanks so much for being on the show. That's todd.
23:09
Speaker 2: How a professor at Indiana University coming up Why New
23:13
Speaker 2: Jersey's Supreme Court is so different? This is Bloomberg. Next week,
23:19
Speaker 2: voters in nearly three dozen states will select hundreds of
23:23
Speaker 2: judges who will be asked to resolve contentious political questions
23:27
Speaker 2: about issues like abortion and gerrymandering. And partisanship has crept into,
23:33
Speaker 2: if not overtaken, judicial elections, with special interest groups spending
23:38
Speaker 2: millions on the races, especially when the flip of a
23:41
Speaker 2: state supreme court could lead to monumental reversals of law.
23:46
Speaker 2: That's true everywhere except in New Jersey. Here to explain
23:50
Speaker 2: why is Alex Ebert Bloomberg, Senior correspondent start by telling
23:55
Speaker 2: us about the record of the New Jersey's Supreme Court
23:59
Speaker 2: in the last two years.
24:01
Speaker 5: The New Jersey Supreme Court is amazing and how consistently
24:06
Speaker 5: it has been unanimous over the last several years. In
24:09
Speaker 5: the last two years in roughly ninety percent of their decisions,
24:14
Speaker 5: they have no concurrences or dissents. They speak with just
24:17
Speaker 5: one voice and.
24:19
Speaker 2: Has the court divided four to three based on political affiliation.
24:23
Speaker 5: It is yees, so for the last two years. Up
24:26
Speaker 5: until just a month ago, it was four Democrats and
24:29
Speaker 5: three Republicans. Now there are four Democrats, two Republicans and
24:33
Speaker 5: one conservative independent who was the former Attorney general for
24:37
Speaker 5: Governor Chris Christie.
24:38
Speaker 2: And how are the justices chosen?
24:40
Speaker 5: The justices are chosen in a unique way. The governor
24:44
Speaker 5: gets to nominate them. But the New Jersey Senate, which
24:48
Speaker 5: has been controlled by Democrats for twenty years, has something
24:51
Speaker 5: really similar to the federal blue slips system. The senators
24:55
Speaker 5: that are from the area where the candidate lives have
24:59
Speaker 5: a feed up check on that nomination getting a confirmation vote.
25:04
Speaker 5: Sometimes that can mean up to five different senators have
25:07
Speaker 5: to be won over by the governor and they use
25:09
Speaker 5: this to extract different thanks from the governor, whether it
25:12
Speaker 5: be budget things or nominations of their political allies to
25:17
Speaker 5: other posts. And because of that, these nominees usually have
25:21
Speaker 5: a really high caliber and can please many people across
25:25
Speaker 5: the state.
25:25
Speaker 2: I mean, if you have an Democratic New Jersey governor,
25:29
Speaker 2: why is he not appointing all Democrats?
25:31
Speaker 5: Let's say that is a question I came into this
25:34
Speaker 5: with and was totally blown away what I've found out.
25:38
Speaker 5: For the last seventy years, the governors of New Jersey
25:41
Speaker 5: have relied on this old tradition, an unwritten rule that
25:46
Speaker 5: says the court is going to be max for justices
25:51
Speaker 5: from one political party. It's always balanced on a partisan
25:55
Speaker 5: knife's edge. And what that does is it creates this
25:59
Speaker 5: system where unanimity and collaboration are a lot more important,
26:05
Speaker 5: because just one switch of the governor can change who
26:09
Speaker 5: controls the majority on the court, because that person will
26:13
Speaker 5: get the chance to possibly nominate, you know, the next
26:16
Speaker 5: vote that could flip it from Democrat to Republican. And
26:19
Speaker 5: so you see these justices working together more collaboratively because
26:23
Speaker 5: of this unwritten rule, not written in their constitution, not
26:26
Speaker 5: written in any statue.
26:28
Speaker 2: It is sort of amazing that it's unwritten and everyone
26:31
Speaker 2: has still been following it. And New Jersey is a
26:35
Speaker 2: reliably blue state.
26:36
Speaker 5: It has been for the last twenty years, at least
26:39
Speaker 5: in the state legislature. But the governorship isn't that way.
26:43
Speaker 5: You know, you saw Chris Christy have two terms before
26:46
Speaker 5: the current Democratic governor, Phil Murphy. So there's definitely the
26:51
Speaker 5: space and ability for a moderate Republican to take over
26:55
Speaker 5: that governor's post. And when they do so, they have
26:58
Speaker 5: to collaborate and work with that Democratic Senate in order
27:02
Speaker 5: to get these people on the bench. And it extends
27:05
Speaker 5: even further than the state Supreme Court, the state chief Justice.
27:10
Speaker 5: He has this unique power in the whole country to
27:13
Speaker 5: balance out partisanship on the state appellate courts, and it's
27:17
Speaker 5: expected to have partisan balance at the trial level as well.
27:21
Speaker 5: Do you see this all the way down like Russian
27:24
Speaker 5: nesting dollars of partisan balance across the state.
27:27
Speaker 2: And just to compare, let's talk about judicial elections in
27:31
Speaker 2: some other states and what's happening this election day.
27:35
Speaker 5: Roughly three dozen states are going to be selecting judges.
27:39
Speaker 5: It's more common to have judges elected than appointed. And
27:43
Speaker 5: these raises, I mean You're seeing millions of dollars from
27:47
Speaker 5: dark money groups pour into them to get justices with
27:51
Speaker 5: their political or ideological legal persuasion on these benches. You know,
27:56
Speaker 5: we saw just last year a thirty one million dollars
28:00
Speaker 5: in Wisconsin, the highest ever. And it's expected for money
28:05
Speaker 5: to be a really big player in these elections in
28:07
Speaker 5: states where abortion is decided at the last line by
28:12
Speaker 5: the state Supreme Court.
28:13
Speaker 2: And explain what's happened in Wisconsin because that seat changed
28:19
Speaker 2: the composition of the court.
28:21
Speaker 5: Yeah, so Wisconsin's an interesting case, but not unique. I've
28:24
Speaker 5: covered judicial races for several years for Bloomberg, and you
28:29
Speaker 5: see in Wisconsin, like you see in North Carolina, how
28:32
Speaker 5: a shifting court will literally overturn decisions that were issued
28:37
Speaker 5: months or recent years previously. So in Wisconsin you had
28:42
Speaker 5: Justice Protocewitz, a Democrat win her spot onto the court,
28:46
Speaker 5: replacing a Republican, and that allowed the court to overturn
28:51
Speaker 5: things like valid droughtbox access and political jerrymandering. It's a
28:56
Speaker 5: really hot button issue in the state. Compare that to
28:58
Speaker 5: North Carolina. Over a couple elections, you saw conservatives takeover
29:02
Speaker 5: that's Supreme Court and they reverse things on election law,
29:06
Speaker 5: and they actually eliminated partisan jerry mandarin claims there after
29:11
Speaker 5: a liberal court had just recently said that folks could
29:14
Speaker 5: bring those cases.
29:15
Speaker 2: Let's talk about how the justices on the Supreme Court
29:18
Speaker 2: in New Jersey choose their cases.
29:21
Speaker 5: Yeah, so the funnel in New Jersey is really interesting.
29:24
Speaker 4: Right.
29:24
Speaker 5: You think about like pouring oil into a car, right,
29:27
Speaker 5: and it's got to go through a funnel. It's the
29:29
Speaker 5: same kind of thing with cases in New Jersey. You
29:31
Speaker 5: start with this wide funnel and it gets narrow really
29:34
Speaker 5: really fast. When you appeal a case in New Jersey,
29:37
Speaker 5: it goes up to a unitary Court of Appeals. That
29:40
Speaker 5: means that you know it'll go to a single body.
29:42
Speaker 5: In the different chanels, all of their cases are precedential
29:46
Speaker 5: on each other. That's different from some states you consider,
29:49
Speaker 5: like Ohio, where you've got more than ten different regional
29:54
Speaker 5: courts of appeals. They are the law is a lot
29:57
Speaker 5: more chaosics, right, But in New Jersey you have this
30:00
Speaker 5: unitary Court of Appeals that means that a case is
30:03
Speaker 5: going to be heard by a panel, and that panel
30:06
Speaker 5: is going to consider the law that everyone else in
30:09
Speaker 5: the state is using. And if that panel has a dissent,
30:13
Speaker 5: they know that that automatically means there's going to be
30:16
Speaker 5: review of some kind by the state Supreme Court. So
30:19
Speaker 5: there's a big incentive even at just the appellate level
30:22
Speaker 5: for those cases to come out unanimously and have collaboration at.
30:26
Speaker 1: The appellate level.
30:27
Speaker 5: Then it gets even more interesting. In the state Supreme Court.
30:30
Speaker 5: New Jersey has this process where they have cert partners,
30:34
Speaker 5: so the justices will team up in pairs of two
30:38
Speaker 5: to consider a different batch of you know, asks from
30:41
Speaker 5: these parties that have cases for the court to give
30:44
Speaker 5: it another look. And oftentimes you'll have a democratic justice
30:48
Speaker 5: and a Republican justice teamed up together looking at cases,
30:52
Speaker 5: collaborating and deciding if the issues are important enough for
30:56
Speaker 5: the New Jersey Supreme.
30:57
Speaker 2: Court to weigh in and then tell us about the
30:59
Speaker 2: next step. The conferences the judges have.
31:04
Speaker 5: The justices, like state supreme courts across the country, they
31:07
Speaker 5: will bring their thoughts on the different cert petitions to
31:12
Speaker 5: the broader court at conference, right, and if the justices agree,
31:16
Speaker 5: they'll give like a unanimous thought on whether the short
31:18
Speaker 5: should take or reject a cer petition. And everyone is
31:22
Speaker 5: in the room and the partners are going back and forth,
31:25
Speaker 5: and more often than not, these justices are agreeing. They're
31:28
Speaker 5: already sort of, you know, seeing whether the law and
31:31
Speaker 5: the implications are important for the state before the court.
31:35
Speaker 5: Even here's the case, and to Justice Stuart Ravener, he's
31:39
Speaker 5: a Democrat, he stits out of the cert partner's process.
31:42
Speaker 5: So you'll have three Democrats and three Republicans looking at
31:45
Speaker 5: these cases ahead of this meeting. But he'll come on
31:48
Speaker 5: in and he'll weigh in on whether the state should
31:51
Speaker 5: take certain petitions.
31:52
Speaker 2: In your story, you talked about the tenor at oral arguments.
31:56
Speaker 5: Oral arguments, when you're listening to them, and not listen
31:59
Speaker 5: to one hundreds of them across the country, they can
32:01
Speaker 5: feel like a dodgeball game.
32:03
Speaker 4: Right.
32:03
Speaker 5: You've got, you know, people being pelted with questions from
32:06
Speaker 5: all sides. Sometimes the judges are even trying to undercut
32:09
Speaker 5: each other, you know, with their questions and you know,
32:12
Speaker 5: advance the legal theories that they're focused on. That is
32:15
Speaker 5: the opposite in New Jersey. You know, the folks that
32:18
Speaker 5: have talked with me that are longtime litigators appearing before
32:22
Speaker 5: the court for thirty years or more, and they've said
32:25
Speaker 5: that it verges on kindness, not even just civility. So
32:30
Speaker 5: you'll see things like the justices will accidentally interrupt a
32:35
Speaker 5: litigant while they're talking, and the justice will actually apologize
32:39
Speaker 5: to the litigant and say sorry for interrupting you. It's
32:42
Speaker 5: wildly different than your femos. So the places where the
32:45
Speaker 5: justices are seeking to interrupt the different lawyers. And another
32:49
Speaker 5: thing that's unique is they are extremely long. You know,
32:52
Speaker 5: I just listened to one last week that went over
32:55
Speaker 5: three hours.
32:55
Speaker 2: Wow.
32:56
Speaker 5: And at the end of the argument, Chief Justice Rabner
32:59
Speaker 5: he has the thing that he always does where he
33:01
Speaker 5: asks the lawyer if they have anything else they'd like
33:04
Speaker 5: to say, And so it drastically changes the way these
33:08
Speaker 5: cases are presented to this panel.
33:11
Speaker 2: I like this part where the litigators who appear before
33:15
Speaker 2: them say that they're not even trying to count votes anymore.
33:19
Speaker 5: There's no more nose counting in terms of what these
33:23
Speaker 5: routine and veteran litigators tell me. You know, these are
33:26
Speaker 5: people that are partners at you know, national law firms
33:29
Speaker 5: that have litigated elsewhere. These are folks that have been
33:31
Speaker 5: in the trenches for decades and they've seen what the
33:35
Speaker 5: court does and how it rules, and they tell me,
33:38
Speaker 5: I can't figure out ahead of the time where this
33:40
Speaker 5: is going to come down, and so they have to
33:43
Speaker 5: offer up like consensus building opportunities for the court because
33:48
Speaker 5: they know that the Court is likely to have these
33:51
Speaker 5: Democrats and Republicans come together on something. So they can't
33:54
Speaker 5: just leave with their strongest argument. They almost have to
33:57
Speaker 5: offer up alternatives that you know, normally you'd see justices
34:01
Speaker 5: sort of you know, peel or crank out of people
34:04
Speaker 5: that don't want to offer them up at argument.
34:06
Speaker 2: So with the Supreme Court, when there is a consensus opinion,
34:11
Speaker 2: it's often narrow. Is that the same in New Jersey?
34:14
Speaker 5: Indeed, so you know, off the record, some folks have
34:18
Speaker 5: told me that they really wish that, you know, things
34:20
Speaker 5: could be bigger swings by the court. Right, this is
34:23
Speaker 5: generally a liberal state, and you know, folks on the
34:27
Speaker 5: criminal defense side, you'll wish that this usually privacy and
34:32
Speaker 5: independence minded judiciary would be more aggressive with advancing you know,
34:38
Speaker 5: criminal rights or consumer rights. But you're seeing the justices
34:41
Speaker 5: come together on narrower.
34:43
Speaker 1: Propositions of the law.
34:45
Speaker 5: You have a lot more like constitutional avoidance, right where
34:48
Speaker 5: you lean into a statute in order to you know,
34:51
Speaker 5: steer clear of murky constitutional questions. You have things where
34:55
Speaker 5: like a court could make a big swing, But really
34:58
Speaker 5: what it's doing is it's getting everyone ou or to
35:00
Speaker 5: come to a narrow proposition of the law where it
35:03
Speaker 5: can be more stable and consensus building.
35:05
Speaker 2: This sounds like a great system, but because it's based
35:09
Speaker 2: on tradition and unwritten law, does it seem like it
35:13
Speaker 2: would ever be implemented in another state.
35:16
Speaker 5: Based No, And in folks that I've talked with they
35:20
Speaker 5: said the same. They recognize that it's extremely fragile. You know,
35:24
Speaker 5: We've got a law professor who is a former co
35:27
Speaker 5: dean of Rutgers University School of Law, and he says
35:30
Speaker 5: in there that, you know, even writing these things down
35:33
Speaker 5: right now would probably make them too political to survive debate.
35:37
Speaker 5: There are some things like the start partners process, which
35:40
Speaker 5: might be exportable. You know, you have a lot of
35:43
Speaker 5: state courts around the country that might be willing to
35:45
Speaker 5: consider that, But things like the partisan balance at the
35:48
Speaker 5: top of the court that might be really hard. You know,
35:51
Speaker 5: over the last century you saw a lot of states
35:54
Speaker 5: move to the Missouri model for their state supreme courts.
35:58
Speaker 5: Right this effort to have some sort of merit selection
36:01
Speaker 5: process to eliminate political corruption by governors or by political machines.
36:07
Speaker 5: So you have the state bar come in and put
36:10
Speaker 5: forward candidates for governors to nominate. That seems to be
36:13
Speaker 5: sort of the alternative process around the country where they
36:16
Speaker 5: aim for non partisan sort of judiciaries. Here you have
36:21
Speaker 5: an outright partisan judiciary, but they're coming together because of
36:25
Speaker 5: these unwritten rules. So it's very unique.
36:27
Speaker 2: And tell us about the justice who described how fragile
36:30
Speaker 2: this is.
36:31
Speaker 5: We got an exclusive interview with retiring justice. His name
36:36
Speaker 5: is Lee Solmon, and he really talked about how New
36:40
Speaker 5: Jersey is one of these states where if we think
36:43
Speaker 5: about how democracy is so fragile, we have this time
36:48
Speaker 5: where politics is really being leveled at the court, and
36:52
Speaker 5: courts are being seen as more political in New Jerseys
36:55
Speaker 5: the state where thus far the legislators and the governors
36:59
Speaker 5: have been able to come together and make sure it
37:01
Speaker 5: doesn't go down the path of other states or federal
37:05
Speaker 5: courts where it really is becoming more of a gloves
37:08
Speaker 5: off brawl. But you know, we're always just one governor
37:12
Speaker 5: looking to pack the cord or push it one way
37:14
Speaker 5: or another. From this system that's so fragile and tenuous.
37:19
Speaker 2: Falling apart a great story, Alex, thanks so much. That's
37:22
Speaker 2: Bloomberg Law Senior Correspondent Alex Ebert. And that's it for
37:26
Speaker 2: this edition of the Bloomberg Law Podcast. Remember you can
37:29
Speaker 2: always get the latest legal news by subscribing and listening
37:32
Speaker 2: to the show on Apple Podcasts, Spotify, and at Bloomberg
37:36
Speaker 2: dot com, slash podcast, slash Law. I'm June Grosso and
37:40
Speaker 2: this is Bloomberg